credit2011

Just received Summons and Complaint but no proof of service.

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Is there a violation in there somewhere for the bottom feeder not reporting it as disputed? I would thing there would be.

 

You'd think so, but it depends on the court and the circumstances.

 

In Wilhelm v. Credico, the 8th Circuit Court of Appeals ruled that a debt collector who receives notice of a dispute AFTER the debt has already been reported does NOT have to report the debt as disputed.

 

2. Post-report dispute. When a debt collector learns of a dispute after reporting the debt to a credit bureau, the dispute need not also be reported.  Wilhelm v. Credico, Inc., 519 F.3d 416, 418 (8th Cir. 2008).

 

I haven't yet found that CA federal courts or the 9th Circuit has ruled on the issue.   Does CA state law make such a specification?

 

Also, if the OP were to dispute now and IF the JDB didn't report their entry as disputed, would it apply to the current case?   That's because a possible violation would have occurred after the lawsuit was filed.

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I think I would ask Calawyer, just to be sure and get headed in the right direction, as well as the time it saves. I would not dispute with the CRA's yet, just in case (don't cure their possible problem for them). The case law doesn't look too promising however.

CACH usually does report them as disputed early in the litigation. I thought there's a law they have to report it as disputed, but I couldn't tell you where (maybe FCRA?).

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I think I would ask Calawyer, just to be sure and get headed in the right direction, as well as the time it saves. I would not dispute with the CRA's yet, just in case (don't cure their possible problem for them). The case law doesn't look too promising however.

CACH usually does report them as disputed early in the litigation. I thought there's a law they have to report it as disputed, but I couldn't tell you where (maybe FCRA?).

 

Both the FDCPA and the FCRA require an entry to be reported as disputed, but the circumstances are not the same.  It depends upon which act you claim a violation. 

 

The applicable section of the FDCPA is 1692e(8).   It says "communicating".   I think that's where the 8th Circuit's ruling applies.  A furnisher (creditor, CA, JDB) who is not updating their entry is not reporting.   If a furnisher is not updating, they're not "communicating."   That's because the FCRA provides that entries stay on your CR for 7 years from the date of first delinquency whether the furnisher updates or not. 

 

To have a potential violation under the FCRA , your first dispute MUST be with the CRA (credit reporting agencies).   As a result, the CRA must report the debt as disputed.  If they don't, you have a violation against the CRA, not the furnisher,  for that particular claim. 

 

Yes, it can get confusing.  :-)

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If that's the case, then I would go with the FDCPA. If the FDCPA says they have to report it, then that's the law. If the FCRA has it that the bottom feeder is not "communicating", then that is supporting the fact that it hasn't been reported as per the FDCPA.

Stick with just the FDCPA and it will not be so confusing, or it will at least be simpler. There may be something to use against them here as leverage (which is important with CACH). Slam dunck or not; leverage is leverage.

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Not sure. She may not have had the opportunity.

I would still press that CACH should be reporting as disputed. I did not dispute with them and they added disputed to mine after the answer was filed.

I just looked at my credit report and it says this  exactly on the report- ITS A ACCT INFO DISPUTED MEETS FCRA 

 

I can only check on Monday when the dispute department is open to verify I did dispute it myself, which I am pretty sure I did.

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I just looked at my credit report and it says this  exactly on the report- ITS A ACCT INFO DISPUTED MEETS FCRA 

 

I can only check on Monday when the dispute department is open to verify I did dispute it myself, which I am pretty sure I did.

OK, then it's all irrelevant now, as they didn't give you anything to work with here. You'll just have to keep doing what you've been doing.

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The BOP they responded to has all objections- Court date is next year sometime. they state and  objected to demand for copy of items because that the account constitutes :account stated and denied all of items requested  is not appropriate- citing Ahlbin vs.Crescent Commercial Corp. - They stated I failed to object to amount due- which I don't think I did- I disputed with CA prior to being served They sent one copy of one of my statements  with a due date on the statement of 2 yrs old about- there is no last payment made on that statement in their response to the BOP

 

Should I just not do anything now  and wait or is a MTC a consideration here?

I am also pretty sure that last payment on this account was at least 4 years ago, but I need to verify my own records if I can - would that , if I can prove an SOL on the account?

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Did they sue under anything else at all besides account stated, such as "open book" or "money lent"  etc.? If they did, then yes the MTC could be a consideration. Or you could send them discovery request for production of documents.

 

It may be hard to prove it was a final payment with your records (unless it said final payment on check, et.), but with your records and them not showing a final payment; you probably could prove the SOL is in your favor.

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I was just thinking,   with all the courts placing trials out for  a year due to the  budget cuts and court delays etc in California- I am assuming when you get sued that the SOL does not hold up if by the time you get to trial and it seems to stop it somehow.  The SOL would of for sure run up by this court date time. its almost an unfair advantage of them adding another year when the law is 4 years in California. Has any one ever argued this in court?  I never say never, cause there are a lot of loopholes in the laws and you never know what could be argued to the defendants advantage.Just covering all the possible scenarios outcomes, possibilities. Its like DNA freeing someone who was in prison for years. You never thought this could happen, but then a law is re- ignited and poof - its admitted.

 

Hope I am not being too way out here..

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I think you are miss construing how the SOL actually works.  In esscence the Plaintill has to bring any suit for damages with 4 years from the date of default.  If they do this and as in your case the 4 years runs out prior to your trial date the case continues until some disposition.

 

Frankly, it is not such a bad thing for the SOL to run out during the time you are waiting for your trial date.  Should the otherside dimiss the case after the SOL has run they can't bring the case again.  I believe this will be their only shot.

 

The inverse is usually what folks don't like or states that have very long SOL.  Where they bring a suit very quickly after default, then dismiss for some reason, then they get another try if the SOL has not run out...

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Regarding my above post "No response from BOP and no response for meet and confer letter.  Nothing NADA!! Way overdue the M&C weeks past the due date"

Should I file a MTC and if they do not respond request a dismissal? Trial is a year out so I am not sure how the court looks at non- responses from the plaintiff.

 

So they reserve any kind of right to eventually furnish this information or not furnish it in a timely fashion?

Should I just lay low?

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Regarding my above post "No response from BOP and no response for meet and confer letter.  Nothing NADA!! Way overdue the M&C weeks past the due date"

Should I file a MTC and if they do not respond request a dismissal? Trial is a year out so I am not sure how the court looks at non- responses from the plaintiff.

 

So they reserve any kind of right to eventually furnish this information or not furnish it in a timely fashion?

Should I just lay low?

For my case, JDB did the same thing. I filed a MTC and when they defied the Court order it made my case pretty and bad for them. I went all the way thru trial because you can ask for the same things via discovery (which depending where you are in CAL some judges will just tell you to ask for it thru discovery and others will grant you the BOP motion).

 

The Motion for a BOP is easier to write than a MTC for Discovery. I've done it. So have your ducks in a row in your motion for BOP so that it gets granted.

 

Write a final letter to the lawyer and if you don't hear a response and (give them a specific date) mention that they give you no choice but to ask help from the Courts and you're filing a Motion. I would schedule the Motion what I believe its 20-30 days out from the date you specify in your letter. Then work on you motion for BOP once you have sent your letter. They will not know what hit them.

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For my case, JDB did the same thing. I filed a MTC and when they defied the Court order it made my case pretty and bad for them. I went all the way thru trial because you can ask for the same things via discovery (which depending where you are in CAL some judges will just tell you to ask for it thru discovery and others will grant you the BOP motion).

 

The Motion for a BOP is easier to write than a MTC for Discovery. I've done it. So have your ducks in a row in your motion for BOP so that it gets granted.

 

Write a final letter to the lawyer and if you don't hear a response and (give them a specific date) mention that they give you no choice but to ask help from the Courts and you're filing a Motion. I would schedule the Motion what I believe its 20-30 days out from the date you specify in your letter. Then work on you motion for BOP once you have sent your letter. They will not know what hit them.

Thanks for your response- it means a lot to me when people take the time out of their day.

 

I am not sure to write a final letter to the lawyer unless it is sending them a conformed copy of a  Motion for BOP. Not sure what this is  (what is the cost? Cheaper than MTC?)-

 

I already sent a BOP and  they did not respond. Is their an example somewhere of the Motion for  BOP  and does it have to have all those statements that go along with a MTC? I would rather let them get things filed with the court from now on so they know I mean business and its on the record.  If they ignored my BOP and M&C I feel they are not going to do anything unless they get a conformed item from me that is filed with the court.

 

 

I don't want them to come up with something they think they can use in court and it  gets accepted by some idiot judge who rules in favor of these attorneys by communicating to the lawyer. - Please correct me if I am wrong.

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Did you tell them in your m&c letter that you will file the MTC? There's a MTC for discovery in ASTMEDIC'S thread that may help. There's one here somewhere for the BOP as well. It's called a motion to compel a further BOP or in the alternative to preclude evidence from trial.

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Did you tell them in your m&c letter that you will file the MTC? There's a MTC for discovery in ASTMEDIC'S thread that may help. There's one here somewhere for the BOP as well. It's called a motion to compel a further BOP or in the alternative to preclude evidence from trial.

I wrote this " defendant will move the court for an order requiring further response, or in the alternative, an order precluding plaintiff from offering such evidence at trial-

they if no response I will file a MTC

 

So I need to do this asap now

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